Fact Check: Are Prosecutors Too Quick To Let The Police Off?

May 4, 2017
Originally published on May 4, 2017 11:21 am

The Justice Department decided not to charge the officers involved last July in the fatal shooting of a black man, Alton Sterling.

The decision is being met with anger by activists who say prosecutors are too deferential toward cops — and are too quick to let them off. That notion has been front and center since the 2014 protests in Ferguson, Mo., that followed the death of Michael Brown.

Here are four questions and answers you should know about whether that complaint is true:

1. Is the Justice Department's explanation not to prosecute the Baton Rouge, La., officers surprising?

It's not surprising. Federal prosecutors aren't in the business of bringing normal murder or manslaughter charges — that's the state's responsibility. The feds bring charges only if they see evidence of constitutional violation, a willful deprivation of someone's civil rights. In a case like this, they'd have to show the cops meant to kill Sterling, and that's hard to prove.

2. Federal prosecutors did bring charges against an officer in another shooting incident — Michael Slager, who killed Walter Scott in North Charleston, S.C., two years ago. Why did the feds pursue that case?

It's tempting to compare these cases. Both incidents were caught on video, both victims were black men, both generated a lot of community anger. The key difference was Walter Scott was shot as he was running from the officer. Alton Sterling was shot in the middle of a struggle, and it appears officers thought he was going for a gun.

That's the key in most of these cases of officers who shoot — what was the danger they reasonably perceived at the moment? That's the constitutional standard in this country: Courts aren't supposed to judge cops on whether they were actually in danger — they judge them on whether the cops reasonably believed they were in danger at that moment.

The public often sees these cases in which, say, a cop shoots someone for reaching for his waistband. There's no gun, but prosecutors don't charge because they know it's enough if a cop can convincingly say he thought there was a gun. Informally, these cases are sometimes called "lawful but awful" — at least, awful from the point of view of many in the public.

3. Have prosecutors become more willing to charge officers in this post-Ferguson era?

There's an academic at Bowling Green State University, Phil Stinson, who follows this. He's also a former cop himself. He keeps track of the number of officers charged with murder or manslaughter — federal or state charges. He says in 2015, there were 18 cops charged. That's the highest he's seen in 13 years of collecting this information. He thought that showed a post-Ferguson increase in prosecutions. But then the next year, 2016, it was down to 13 officers charged.

The truth is, these variations are not very meaningful, statistically, because the numbers of prosecutions are so small. But he thinks it might be a sign of waning interest in charging cops. And he also points out that since Ferguson, we've been getting a more accurate count of the total number of people killed by police every year — about 1,000. So the question becomes, are 13 prosecutions out of 1,000 too low? Or should we accept that 987 out of 1,000 are justifiable?

4. Has the election of President Trump and the appointment of Attorney General Jeff Sessions, who has expressed his doubts about federal intervention on local police departments, affected the likelihood of prosecution?

It's too soon to say. Generally speaking, this is really a state matter, but the feds also play a role. When they come in and do an investigation, and explore federal charges, it puts pressure on local prosecutors. It gives the community the assurance that there's another set of eyes on the case. Also, it's not clear Attorney General Sessions is against prosecuting individual officers, when warranted. He objects to the Justice Department intervening with whole departments, but the fact that federal prosecutors kept up the heat in the Michael Slager case in South Carolina may indicate individual civil rights prosecutions may still happen.

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STEVE INSKEEP, HOST:

In Louisiana, the next move belongs to state prosecutors. They decide whether to file charges in a high-profile police shooting. Federal prosecutors say they will not act against two police officers who shot Alton Sterling. The shooting came last year amid heightened attention toward many police shootings, and NPR's Martin Kaste has been asking if that attention over the last few years has made police any more likely to be prosecuted.

MARTIN KASTE, BYLINE: Phil Stinson is a former cop who now studies cops. He's an associate professor at Bowling Green State University where he does something that the government doesn't. He counts the number of times that police officers face criminal charges, state or federal. And sure enough, he says that number jumped in the year right after Ferguson.

PHIL STINSON: In 2015, there were 18 police officers across the country charged with murder or manslaughter resulting from an on-duty shooting where the officer shot and killed someone - 18. And that was the highest we've seen as long as I've been tracking this the last 13 years.

KASTE: But did that increase represent a real change in the way prosecutors look at police shooting cases? Stinson doesn't think so. For one thing, he says the next year, 2016, that number dropped again.

STINSON: Well, if anything, it was regression to the mean. I think we're going back to right what we've seen year to year over the last decade or so. It's just a rare event that an officer gets charged.

KASTE: These numbers are very small, so statistically speaking, the variations don't mean that much. But Stinson says it is important to look at the bigger picture, the fact that American police kill about 1,000 people a year and only about 1 percent of those deaths result in criminal charges. Jim Pasco, with the National Fraternal Order of Police says, there's no reason to frame that low percentage as a bad thing.

JIM PASCO: He can't discard the possibility, however much it may disappoint him, that the reason there are only 18 prosecutions is that there were only grounds for prosecution of 18 cases.

KASTE: That said, Pasco agrees that post-Ferguson activism has not led to a big increase in prosecutions of police.

PASCO: The scrutiny by media and the ubiquity of social media certainly have added to the drumbeat of criticism of police officers. But generally speaking, I don't believe that's translated into a higher number of prosecutions because at the end of the day, prosecutors need provable cases.

KASTE: And that seems to be why the Justice Department refrained from filing charges in Baton Rouge. In order to make a federal case, acting U.S. Attorney Corey Amundson would have had to have shown that the police willfully deprived Alton Sterling of his civil rights - in other words, that they'd meant to kill him.

COREY AMUNDSON: Based on the evidence of this particular case, we have all concluded, every single agent and prosecutor on this case, that there simply is not sufficient evidence to proceed with a federal charge.

KASTE: But Amundson also prefaced his remarks yesterday by pointing out that he and all his colleagues on this case are career public servants who've worked for the Justice Department for years. The implication was clear. In this era of President Trump and Attorney General Jeff Sessions, both of whom have repeatedly expressed their support for police, Amundson did not want this prosecutorial decision to be seen as political. Martin Kaste, NPR News. Transcript provided by NPR, Copyright NPR.